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Mass Solitary and Mass Incarceration: Explaining the Dramatic Rise in Prolonged Solitary in America’S Prisons

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Mass Solitary and Mass Incarceration: Explaining the Dramatic Rise in Prolonged Solitary in America’S Prisons Copyright 2020 by Jules Lobel Printed in U.S.A. Vol. 115, No. 1 MASS SOLITARY AND MASS INCARCERATION: EXPLAINING THE DRAMATIC RISE IN PROLONGED SOLITARY IN AMERICA’S PRISONS Jules Lobel ABSTRACT—In the last two decades of the twentieth century, prisons throughout the United States witnessed a dramatic rise in the use of solitary confinement, and the practice continues to be widespread. From the latter part of the nineteenth century until the 1970s and ’80s, prolonged solitary confinement in the United States had fallen into disuse, as numerous observers and the United States Supreme Court recognized that the practice caused profound mental harm to prisoners. The reasons for this dramatic rise in the nationwide use of solitary confinement and the development of new supermax prisons have not been explored in depth. In particular, there has been little critical discussion of the rise of mass prolonged solitary as a product of the mass incarceration of the last several decades of the twentieth century. This Essay locates the rise of mass solitary in the 1980s in the context of mass incarceration. It explains the dramatic expansion of the use of solitary confinement and the construction of new super-maximum (supermax) prisons as an attempt by prison officials and politicians to maintain control of prisons in the face of increasingly radicalized, rebellious prisoners—often, but not exclusively, African-American—who had organized protests and disobedient conduct in American prisons from the 1960s to the 1980s. The rise of solitary was connected to the use of mass incarceration as a form of social control. As society became more violent, so too did many prisons, but to view that violence as the underlying cause of the growth of supermax and other segregated confinement obscures the deeper, underlying causes of the rise of mass solitary. Those causes are linked to the rise of mass incarceration itself. Uncovering the history and causes of the dramatic rise in supermax prisons and the use of prolonged solitary confinement in the 1980s and ’90s is critical to understanding not only how we got to where we are, but how we can end this cruel and inhumane practice. The first Part of this Essay recounts the origins of the supermax prison at Marion Federal Penitentiary in the late 1970s and early 1980s and 159 N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W demonstrates that the rise of mass solitary was more an official reaction to the need to control politically active and disruptive prisoners than to the violence narrative. The second Part explores prison officials’ need to reassert control over their prisoners and draws the parallels between the rise of both mass incarceration and mass solitary as a racialized mechanism of social control. The third Part introduces the preventive paradigm as a model to control prisoners and demonstrates that the concept of preventing future misconduct fueled both mass incarceration and the modern supermax, resulting in minimizing due process restraints and erroneously isolating thousands of people. Finally, the last Part analyzes the current reform movement and the alternatives that have been proffered and utilized to replace solitary, supermax confinement. The Essay concludes that prolonged solitary confinement can be abolished, and that prison officials have alternatives that can safely manage even very dangerous prisoners. AUTHOR—Bessie McKee Walthour Professor of Law, University of Pittsburgh Law School. I want to thank my research assistants Emma Carson and Ariel Fleischer for their invaluable research, and Professor Todd May and Staughton and Alice Lynd for their insightful comments and advice. I also thank Dean Amy Wildermuth of the University of Pittsburgh Law School for the financial support and encouragement for my research and the staff of the University of Pittsburgh Document Technology Center for their assistance in preparing this manuscript. INTRODUCTION ....................................................................................................... 160 I. THE VIOLENCE NARRATIVE AND THE RISE OF THE SUPERMAX ............................ 169 A. The Violence Narrative ........................................................................... 169 B. Marion and the Creation of the Modern Supermax .................................. 172 II. SUPERMAX AND CONTROL OF DISRUPTIVE OR REBELLIOUS PRISONERS ................ 178 III. THE PREVENTIVE MODEL ................................................................................ 187 IV. ENDING PROLONGED SOLITARY CONFINEMENT ................................................. 195 A. Rejecting the Preventive Paradigm.......................................................... 196 B. Alternatives to Solitary Confinement for Violent Prisoners ....................... 201 CONCLUSION .......................................................................................................... 208 INTRODUCTION In the last two decades of the twentieth century, prisons throughout the United States witnessed a dramatic rise in the use of solitary confinement, and the practice continues to be widespread. From the latter part of the 160 115:159 (2020) Mass Solitary and Mass Incarceration nineteenth century until the 1970s and ’80s, prolonged solitary confinement in the United States fell into disuse, as numerous observers recognized that the practice caused profound mental harm to prisoners.1 In 1890, the United States Supreme Court summarized the mental harm caused by solitary confinement, noting that “[a] considerable number of the prisoners fell . into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane, others, still, committed suicide” and even “those who stood the ordeal better . in most cases did not recover sufficient mental activity to be of any subsequent service to the community.”2 The era of large-scale isolation practiced in the early nineteenth century thus came to an end in the beginning of the twentieth century.3 Isolation was still used in American prisons, but typically as short-term punishment and on a much smaller scale.4 Even the harshest prison in the federal system, the infamous and widely criticized Alcatraz—which made no pretense of rehabilitation, employed no teachers, social workers, or psychologists, and severely limited contact with the outside world—nonetheless provided congregate work and recreational activities for most prisoners.5 While many 1 Charles Dickens visited the Cherry Hill, Pennsylvania prison in 1842 and reported: I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers . there is a depth of terrible endurance in it which none but the sufferers themselves can fathom, and which no man has a right to inflict upon his fellow-creature. I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body . CHARLES DICKENS, AMERICAN NOTES 39 (New York, Harper & Bros. 1842). Danish fairy tale author Hans Christian Andersen reported that a similar Pennsylvania-model prison in Sweden, which used solitary confinement, was “a well-built machine—a nightmare for the spirit.” HANS CHRISTIAN ANDERSEN, PICTURES OF SWEDEN 56 (London, Richard Bentley 1851). And the well- known sociologist Alexis de Tocqueville and his colleague Gustav de Beaumont observed that a similar form of solitary confinement tried in Auburn, New York “proved fatal for the majority of the prisoners. It devours the victim incessantly and unmercifully; it does not reform, it kills. The unfortunate creatures submitted to this experiment wasted away . .” TORSTEN ERIKSSON, THE REFORMERS: AN HISTORICAL SURVEY OF PIONEER EXPERIMENTS IN THE TREATMENT OF CRIMINALS 49, 260 nn.9 & 10 (1976) (quoting GUSTAVE DE BEAUMONT & ALEXIS DE TOCQUEVILLE, DU SYSTÈME PÉNITENTIAIRE AUX ÉTATS-UNIS, ET DE SON APPLICATION EN FRANCE 13–14 (Paris, Fournier 1833)). For an alternate English translation, see GUSTAVE DE BEAUMONT & ALEXIS DE TOCQUEVILLE, ON THE PENITENTIARY SYSTEM IN THE UNITED STATES AND ITS APPLICATION IN FRANCE 41 (Francis Lieber trans., S. Ill. Univ. Press 1964) (1833). 2 In re Medley, 134 U.S. 160, 168 (1890). 3 Peter Scharff Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature, 34 CRIME & JUST. 441, 467 (2006). 4 Id. 5 See David A. Ward & Thomas G. Werlich, Alcatraz and Marion: Evaluating Super-Maximum Custody, 5 PUNISHMENT & SOC’Y 53, 55–56 (2003); see also Roy D. King, The Rise and Rise of Supermax: An American Solution in Search of a Problem?, 1 PUNISHMENT & SOC’Y 163, 166 (1999) (explaining that while Alcatraz was a strict institution intended to “break spirits,” the notoriously 161 N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W state correctional systems designated certain prisons for the most violent prisoners, rarely did those prisons “operate[] on a total lockdown basis as normal routine.”6 Instead, prisons designated as maximum security “generally allowed movement, inmate interaction, congregate programs, and work opportunities.”7 However, starting in 1972 with the creation of the control unit at the new United States Penitentiary at Marion, and escalating with Marion’s total lockdown and the construction of fifty-seven new super-maximum (supermax) prisons in the 1980s and 1990s,8 the model of incarcerating large numbers of prisoners in near total isolation
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